High Court Defends Second Amendment

In one of the most important cases in decades, the Supreme Court ruled citizens have a Second Amendment right to carry handguns for self-protection, and no state can strip it.

Citing America’s founding documents and history, the Court shifted the modern presumption back to the citizen, saying states cannot force a citizen to show cause for carrying a firearm, unless consistent with history and the Constitution.

Men and women in many states regularly face life-threatening situations and yet are disallowed from deterring or reacting to those events with a sidearm. That is about to change. They are now going to be able to do so.

The case, New York Rifle and Pistol Assn. v. Bruen, was remanded back to New York for decision consistent with a clear statement of Second Amendment rights. But this case will immediately affect tens of millions in states with laws like New York’s. Among states likely to be affected are California, Hawaii, Maryland, Massachusetts, and New Jersey, not to mention states and cities with parallel restrictions.

In Justice Thomas’ cogent, 63-page opinion, the right to “keep and bear arms” is affirmed. New York had said anyone wishing to carry outside the home had to have a “proper cause,” believing self-defense did not count.  Our Founders would have balked at that. So did the Supreme Court’s majority.

Following precedent, the Court set aside a state-based test that tightly restricted Second Amendment rights in favor of a broad understanding of the Amendment’s meaning. Thomas noted, if “the Second Amendment’s plain text covers an individual’s conduct,” any permissible regulation must be narrow and consistent with history.

New York – and other states – failed the Thomas injunction, because the right to carry a handgun in public for self-protection (especially today) was exactly what the Second Amendment allowed, hardly outside the original intent of the Bill of Rights.

We do not have one right for home protection and another for protection outside the home. In fact, as Thomas notes, the right to “bear” arms naturally involves carrying arms outside the home.

To assure he was properly grounded, not misunderstood, and that the right was not questioned, Thomas went back through 700 years of law, beginning in the 1200s. 

As an aside, having once sat with the Justice in his chambers, as he spoke about the meaning of “due process,” his historical source waters are crystal clear and run deep on just about everything.  He began that discussion with the Magna Carta (1215 AD).

Thomas also observed, even up to modern times, New York – for most of its history – had no requirement that citizens should require a special need to carry, beyond self-defense.  Accordingly, while a narrow restriction for courthouses and polling places might be allowed, there is “no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

Putting a fine point on the freedom intended by the Founders, Thomas described New York’s “argument would in effect exempt cities from the Second Amendment … would eviscerate the general right to publicly carry arms for self-defense.”  Thus, no go.

The effect of this ruling – which expands on DC v. Heller (2008), an incisive Scalia opinion focused on DC law, will likely be greater citizen confidence, security, and comfort in locations formerly dominated by the criminal element, higher deterrence of crime nationwide, and a new preparedness of citizens – individually and collectively – to prevent one-off or mass shooting events, since a responding force will now be available.

In a fascinating twist, the dissent by Breyer, joined by Sotomayor and Kagan, tried to oppose the majority understanding by citing gun violence in America.  Justice Alito then concurred, flaying the dissent’s weak grounding.

Alito noted the dissenters went left, not thinking about the facts or law in question. Alito pointed out that the case “decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kind of weapons that people may possess.” 

Alito also points out that people want to carry for self-protection precisely because of “the ubiquity of guns and our country’s high level of gun violence …” The more illegal guns, less emphasis on law enforcement, and greater public fear, the more justification for law abiding gun owners to carry for self-protection.

Not surprisingly, the Biden White House slammed the Supreme Court, suggesting– as the President prepared to sign more gun restrictions – that his understanding of the law was deeper, and High Court missed “both commonsense and the Constitution.”

One is left a bit flatfooted here.  Biden barely got through law school, nobbled many brilliant judges when running Judiciary in the Senate, and is not widely viewed – even by his own party – as a sage, crisp, or otherwise cutting-edge wit, let alone legal giant.

Perhaps the best one can say is, as with other recent decisions on education and abortion, thank God wise men and women populate our top court. May it always be so.